Plaintiff, Dealer Management Systems, Inc., appeals from an order of the circuit court of Lake
County denying its petition under section 2--1401 of the Code of Civil Procedure (735 ILCS 5/2--1401 (West 2002)) to vacate the dismissal of its complaint against defendant, Design Automotive
Group, Inc. We affirm.

Plaintiff filed a two-count complaint on June 5, 2002. Count I alleged that in 2000, defendant
issued a purchase order to plaintiff for "computer programs and other services." A copy of the
purchase order attached to the complaint shows that plaintiff agreed to provide defendant with an
"Accounting Information Management" system consisting of various separately priced software
components. The price of the individual components totaled $24,000, but plaintiff agreed to provide
them as a package for $20,000 plus an additional $795 for an item identified as
"RMCOBALRUNTIME SYSTEM FOR UNIX 16." The purchase order also contains the following
language:

"Software changes to AIM System to provid [sic] the same or better function as compared
with current system. Develop a MRP subsystem to meet manufaturing [sic] needs[.] Also
includes data file conversion progr [sic] from our current system and load prgrams [sic] in the
AIM system. Also includes user training and support for 1 year.

@ [$]15000.00

Includes source code license for internal use only and not for resale to anyone or company."

Plaintiff alleged that defendant had breached the contract by failing to pay the $20,000 purchase price
for the software. Count II sought recovery in quantum meruit for other computer programs that
plaintiff allegedly wrote for defendant.

On July 10, 2002, defendant moved to dismiss count I pursuant to section 2--619(a)(7) of the
Code of Civil Procedure (Code) (735 ILCS 5/2--619(a)(7) (West 2002)). Defendant argued that,
because it had not signed the purchase order, the agreement was unenforceable under section 2--201(1) of the Uniform Commercial Code--Sales (UCC)--the statute of frauds--which provides, in
pertinent part:

"[A] contract for the sale of goods for the price of $500 or more is not enforceable
by way of action or defense unless there is some writing sufficient to indicate that a contract
for sale has been made between the parties and signed by the party against whom enforcement
is sought ***." 810 ILCS 5/2--201(1) (West 2000).

On that same date, defendant also filed a demand for a bill of particulars as to count II. Defendant
subsequently moved to strike count II on the basis that plaintiff failed to file and serve a bill of
particulars in response to the demand. See 735 ILCS 5/2--607(b) (West 2002). On August 27, 2002,
the trial court granted the motion to strike, but gave plaintiff seven days to file a bill of particulars and
seek leave to reinstate count II. The court also gave plaintiff 21 days to respond to the motion to
dismiss count I and continued the case to October 8, 2002, for a hearing on the motion to dismiss.
Plaintiff filed neither a bill of particulars nor a response to the motion to dismiss. On October 8,
2002, the court granted the motion to dismiss count I and dismissed the entire complaint with
prejudice.

On March 15, 2004, plaintiff filed a petition to vacate the dismissal of the complaint. Plaintiff
alleged that due to illness, its attorney neglected to respond to the motion to dismiss. Plaintiff further
alleged that because of a recordkeeping error, its attorney did not learn of the dismissal until February
2004. Plaintiff set the petition for a hearing on April 6, 2004. Defendant neither answered the
petition nor moved to strike it, but on April 6, 2004, the trial court entered an order denying the
petition. This appeal followed.

To obtain relief under section 2--1401, a litigant "must affirmatively set forth specific factual
allegations supporting each of the following elements: (1) the existence of a meritorious defense or
claim; (2) due diligence in presenting this defense or claim to the circuit court in the original action;
and (3) due diligence in filing the section 2--1401 petition for relief." Smith v. Airoom, Inc., 114 Ill.
2d 209, 220-21 (1986). Whether to award relief under section 2--1401 lies within the sound
discretion of the trial court depending on the facts and equities presented, and a reviewing court will
not disturb that decision unless it represents an abuse of discretion. Airoom, 114 Ill. 2d at 221.

Plaintiff frames the question on appeal as whether its petition was sufficient to establish
grounds for relief under section 2--1401. Plaintiff contends that because defendant did not answer
the petition or move to strike it, its allegations must be taken as true, and the only question presented
is whether the petition was legally sufficient. See Windmon v. Banks, 31 Ill. App. 3d 870, 873
(1975). We disagree. Under Supreme Court Rules 104 and 105 (134 Ill. 2d Rs. 104, 105), a party
is entitled to notice that it must answer or otherwise respond to a section 2--1401 petition within 30
days after service of the petition. Here, the petition was filed on March 15, 2004, along with a notice
of "motion" indicating that the petition would be heard 22 days later on April 6, 2004. The record
does not indicate when the petition was served; thus we cannot determine if defendant's answer was
not yet due on the hearing date. Moreover, the notice of "motion" did not advise defendant that it
was required to file an answer to the petition. Under these circumstances, plaintiff must be deemed
to have waived the requirement that defendant answer or otherwise respond to the petition.

Plaintiff also argues that because the trial court "dismissed" the petition, the factual allegations
must be taken as true. See Cartwright v. Goodyear Tire & Rubber Co., 279 Ill. App. 3d 874, 883
(1996). However, the trial court's order recites that the petition was "denied," not that it was
"dismissed." Unfortunately, plaintiff has not supplied a report of proceedings of the April 6, 2004,
hearing at which that order was entered, so we cannot be certain of the precise basis of the trial
court's ruling. It is possible that the trial court concluded that the petition was legally insufficient, but
it is also possible that the court gave plaintiff the opportunity to prove its case and found the proof
wanting. It is well established that "an appellant has the burden to present a sufficiently complete
record of the proceedings at trial to support a claim of error, and in the absence of such a record on
appeal, it will be presumed that the order entered by the trial court was in conformity with law and
had a sufficient factual basis." Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92 (1984).

We need not rest our decision entirely on the inadequacy of the record, however. Even if we
were to accept plaintiff's argument that the only issue before us is the legal sufficiency of the petition,
we would resolve that issue against plaintiff. We conclude that the petition fails to satisfy the first
requirement for relief under section 2--1401: the existence of a meritorious defense or claim. In its
appellate brief, plaintiff addresses only the dismissal of its breach of contract claim. As previously
discussed, defendant moved for dismissal on the basis that the contract did not comply with the
UCC's statute of frauds for the sale of goods. Plaintiff contends that it has a meritorious claim
because the underlying contract was not for a sale of goods subject to the statute of frauds.
According to plaintiff, the contract was wholly or predominantly for the provision of services and thus
not subject to the statute of frauds. We disagree.

Before proceeding, we note that plaintiff's petition did not offer any new facts bearing on the
applicability of the statute of frauds. Rather, in its petition plaintiff essentially seeks to raise an error
of law. There is conflicting authority on whether a section 2--1401 petition may be predicated on
legal error. Compare Universal Outdoor, Inc. v. City of Des Plaines, 236 Ill. App. 3d 75, 81 (1992)
("[A] petition under section 2--1401 is not appropriate for review of errors of law"), with
Hoopingarner v. Peric, 28 Ill. App. 3d 53, 57 (1975) (a section 2--1401 petition "is proper for the
correction of errors of law apparent on the face of the record"). For purposes of our analysis, we will
assume, without deciding, that an error of law may be raised in a section 2--1401 petition.

Some courts have concluded that a contract to develop entirely new software is one for services
rather than goods. Pearl Investments, LLC v. Standard I/O, Inc., 257 F. Supp. 2d 326, 353 (D. Me.
2003) (developer's agreement to create software "from scratch (concept to realization) for which it would
be paid on a time and materials basis" was a contract for services); see also Micro-Managers, Inc. v.
Gregory, 147 Wis. 2d 500, 505-07, 434 N.W.2d 97, 100 (App. 1988). But see Dharma Systems, Inc.,
148 F.3d at 654 ("we can think of no reason why the UCC is not suitable to govern disputes arising from
the sale of custom software"); Downriver Internists v. Harris Corp., 929 F.2d 1147, 1151 (6th Cir. 1991)
(noting decisions holding that contracts for software package development are for goods, not services).
On the other hand, a contract that calls for the modification or customization of existing software may still
be a transaction in goods. See Dharma Systems, Inc., 148 F.3d at 654 (Article 2 applied to agreement
to adapt proprietary software); Advent Systems Ltd., 925 F.2d at 675 ("The fact that some programs may
be tailored for specific purposes need not alter their status as 'goods' because the [UCC] definition includes
'specially manufactured goods' ").

Contracts for the sale of software often also involve the provision of services. "Where there
is a mixed contract for goods and services, there is a 'transaction in goods' only if the contract is
predominantly for goods and incidentally for services." Brandt v. Boston Scientific Corp., 204 Ill.
2d 640, 645 (2003). Article 2 applies to software transactions where the services provided "are not
substantially different from those generally accompanying package sales of computer systems
consisting of hardware and software." Advent Systems Ltd., 925 F.2d at 676. Such ancillary services
include installation, training, and technical support. Dahlmann, 63 F. Supp. 2d at 775. Comparing
the relative costs of materials and labor may be helpful in the analysis, but is not dispositive. Advent
Systems Ltd., 925 F.2d at 676; accord ePresence, Inc., 190 F. Supp. 2d at 163 ("As the Agreement's
price terms make plain, the software programs themselves were the essence of the Agreement").

Finally, although the statute of frauds applies only to contracts for the "sale" of goods,
the labels used by the parties to describe a transaction are not controlling. Thus, a transaction
that nominally involves a mere license to use software will be considered a sale under the UCC
if it " 'involves a single payment giving the buyer an unlimited period in which it has a right to
possession.' " Softman Products Co., LLC v. Adobe Systems Inc., 171 F. Supp. 2d 1075, 1086
(C.D. Cal. 2001), quoting R. Nimmer, The Law of Computer Technology §1.18[1], at 1--103
(1992).

Applying these principles here, we conclude, as a matter of law, that the contract was
predominantly for goods and only incidentally for services, and that it amounted to "a sale of goods"
under the UCC. The written agreement is entitled "purchase order." It lists various software
"subsystems" with descriptions corresponding to standard accounting tasks (e.g., "Accounts
Receivable Subsys.," "Inventory Control Subsys"). There is nothing in plaintiff's complaint or in the
purchase order itself to suggest that these components were developed "from scratch." The
subsystems are separately priced, but sold as a package for $20,000. The price for services, in
comparison, is only $15,000. Moreover, this amount includes customization of the software.
Customization may be treated as "the 'manufacture' of the 'good' from existing software" rather than
as a service. Dharma Systems, Inc., 148 F.3d at 655. Thus, more than $20,000 of the contract price
is for goods and less than $15,000 is for services. In addition, the services provided--installation,
training, and support--"are not substantially different from those generally accompanying package
sales of computer systems consisting of hardware and software." Advent Systems Ltd., 925 F.2d at
676. The agreement is a sale subject to the statute of frauds because it provided for transfer of the
software for an unlimited time for a single payment. Accordingly, plaintiff has not shown the
existence of a meritorious claim that could have withstood the UCC's statute of frauds. Plaintiff was
not entitled to relief under section 2--1401 of the Code.

For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed.